After pushback from Hays County District Attorney Kelly Higgins about the manner in which he began live streaming of court proceedings and the possibility of private conversations being recorded without the involved parties knowledge, 483rd Judicial District Judge Tanner Neidhardt live streamed court proceedings once again last week and announced his new policy to do so regularly for the purpose of providing “transparency.” Neidhardt also asserted that the District Attorney’s office is overcharging defendants “in order to get a plea” and was planning to use a child victim’s name in a recent case that was slated to be live streamed by Neidhardt, which he said is not permitted by law. Hays County District Attorney Kelly Higgins said he didn’t take issue with live streaming the court in general but that the judge should have informed everyone in the court that they were being recorded. He also said that overcharging of defendants was the result of cases brought about by the previous administration and dismissal of those charges is the best way to resolve that issue.
Neidhardt started his court proceedings last week with an explanation of why he was continuing the live stream.
“When people come in and see what we're doing, they see how you are defending people, attorneys, [and] protecting their constitutional rights; they see this process,” Neidhardt said. “They believe in our system again … so that's what this live stream is about. It's about letting people see what we're doing, and I hope bringing confidence back to our courts. Because when people come and see it, they believe it.”
Neidhardt pointed to the Texas Constitution as a reason for recording court proceedings, which states that “all courts shall be open.” He said that, in his opinion, without the ability to view court online, there are barriers to access to the courts for many.
“If [people] can't actually come here because they have a job from nine to five, or if they are a student and they have to be in class, or they're a mom that has kids but wants to know what we're doing and hear about the Fentanyl crisis, they can't really come,” Neidhardt said. “What is the right to access if they can't come in and actually see it? That's what I think we're doing … we're giving them an opportunity.”
Neidhardt referenced the initial live streamed court proceedings. In that case, the Defense Attorney, Victorea Brown, said Neidhardt rejected the plea deal stating that the facts did not support the plea. She said Neidhardt also instructed the jury not to consider the Indecency with a Child by Sexual Contact charges because he said there was no evidence to support them.
“Here's the thing, if a party attempts to overcharge your client in order to get a plea, is that justice?” Neidhardt said. “I didn't stand for it last week, and I'm not going to. … Building leverage against a client is not the way the process was intended to be. It's only through due process, proving someone [committed a crime] beyond reasonable doubt, not because you stack more counts against them. … I said I wouldn’t allow it last week. Was I wrong? Maybe. So if it's on the system, people can look at it, and they can decide. I know that people will come after me, but I believe in the transparency. You can hold me accountable.”
Higgins said his office has prosecuted “the balance of the cases” left by his predecessor over the last 18 months, and some of those cases did exhibit overcharging or piling on of charges.
“We have negotiated through almost all of those cases at this point, and I believe very few are left to be resolved,” Higgins said. “I believe the court’s editorializing on this topic to be underinformed, seeing that the court itself did not exist during the previous administration, that the judge never worked in Hays County until he was appointed judge of the 483rd District Court by Governor Gregg Abbott, and that the court’s subsequent exposure to the remainder of my predecessor’s cases might well lead an objective observer to the opinion that overcharging was a commonplace. And I must agree. That was a significant factor in my deciding to challenge the sitting DA in 2022.”
Higgins said he felt in the name of “both judicial economy and old-fashioned justice” he would “anticipate any court welcoming the corrections represented by our negotiating agreed resolutions to those cases.”
“I do not believe the court’s opinion represents fair comment since it leaves aside the reality that any overcharging must be corrected in precisely the way objected to by this court,” Higgins said. “What other means are available to correct an overcharging decision than to reform the charge during negotiations? A case being overcharged does not mean that nothing happened; it means that prosecutors charged more than could be proved in court. When we recognize that as being the case, we correct for the mistake.”
Neidhardt mentioned the Motion to Remove Online Recording submitted by Assistant Criminal District Attorney Daniel Sakaida during the previous trial. One of the reasons prosecutors in from the DA’s office had objected to the live stream during that particular court case was that it could lead to Disclosure of Certain Child Victim Information, which is protected by Texas Code of Criminal Procedure 58.105. Neidhardt took exception to that issue stating that he felt that if the prosecutors were following the law in the first place, the identity of that individual should have remained concealed in open court regardless.
“Last week when the state came to us and the state said, ‘look, there's this issue of a child witness, and in the [Texas] code [of Criminal Procedure], Article 58.105 says that no one can use the name of the victim’, right? But the code says you can't do it at all. But one of the parties last week said, ‘we don't think we can comply with that,’” Neidhardt said. “So I shut it down before we ever went any farther because I was told that one group couldn't comply with that law. So we're going to follow the laws in here, and even if it means at some point that we have to shut it down because we need to provide more protections. We'll do that too.”
Neidhardt mentioned Higgins' comment that the cameras were “secreted and installed prior to trial without the knowledge of the parties,” and pointed to the camera, which was visible at that moment. Neidhardt inferred that the camera was equally visible during the initial live streamed trial proceedings though he said the position had changed. Brown, the defense attorney in the initial live streamed court case, mentioned that she could see the cameras during trial proceedings but said there was no formal announcement that a live stream was taking place. She said she assumed the cameras were there to “help the court reporter.”
“There's… a suggestion that last week [that] cameras were secreted; That was the word. This is where it sat last week, right here,” Neidhardt said pointing to the camera on the judge’s bench. “There's a picture on the internet of some little pinhole in a wall [that] makes it look like no one saw it. It was right here last week. Let people see that. It's all open. This week, though, so it's not so in your face, we've made an adjustment. It's right here. I want you all to know where it is.”
Higgins affirmed that his objection to the initial live streamed court proceeding was because the parties were not informed. He believes that live streaming is proper and “to be desired” as long as all parties are informed in advance.
“I have read news articles featuring denials that the court secreted the cameras and the livestream on July 1,” Higgins said. “I affirm that the court did not inform either of the parties to the case, and further, that the court instructed people who did know about the cameras not to inform this office or the defense about the cameras. I am mystified at the assertion that the parties knew or should have known about the secreted cameras and the court’s livestream of that particular proceeding. The cameras were hidden by the court, and no disclosure was made that they were there, or that they were livestreaming. This fact should not be in controversy.”
Neidhardt referenced a portion of the article previously published by the Daily Record on the live streamed court proceedings. That article discussed a conversation between Brown and her client that may have been recorded without their knowledge. Brown said the judge had confirmed the conversation was not discernable on the livestream. Neidhardt took exception to the Daily Record quoting Texas’ “one party consent” law requiring one party in the conversation to know that they were being recorded.
“There was a suggestion that there is required consent. That's in the Civil Code; that's not in the Criminal Code. That wasn't correct,” Neidhardt said. “None of this is done without the authorization of the Texas Office of Court Administration. They set it all up. They give the zoom. In fact, you can go to their web page and see all of those other courts that are live.”
Watch the recording of the court proceeding in which Neidhardt announced that he will be live streaming courts from this point forward at this link: youtube.com/ watch?v=_ntPQ0SlsFE.
Here's the thing, if a party attempts to overcharge your client in order to get a plea, is that justice?
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Judge Tanner Neidhardt I do not believe the court’s opinion represents fair comment since it leaves aside the reality that any overcharging must be corrected in precisely the way objected to by this court. What other means are available to correct an overcharging decision than to reform the charge during negotiations?
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District Attorney Kelly Higgins
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